Chesapeake Louisiana L P et al v. Innovative Wellsite Systems Inc et al

Filing 226

MEMORANDUM ORDER denying 161 Motion in Limine; denying 162 Motion in Limine; granting 183 Motion in Limine. Signed by Judge S Maurice Hicks on 01/23/2015. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT
CHESAPEAKE LOUISIANA, L.P.,
ET AL.

CIVIL ACTION NO. 12-2963

VERSUS

JUDGE S. MAURICE HICKS, JR.

INNOVATIVE WELLSITE SYSTEMS,
INC., ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the Court are three motions in limine, all relating to the admissibility of
subsequent remedial measures: (1) Motion in Limine to Allow Evidence of Subsequent
Remedial Measures (Record Document 161) filed by Defendants China Petroleum
Technology & Development Company (“CPTDC”) and Jiangsu Jinshi Machinery Group
Company, Ltd. (“JMP”); (2) Motion in Limine to Allow Evidence of Post-Blowout Remedial
Measures and Operational Changes (Record Document 162) filed by Defendant Petroleum
Products & Services, Inc. d/b/a Wellhead Distributors International (“WDI”); and (3) Motion in
Limine to Exclude Evidence Regarding the Barrier Philosophy and Related Subsequent
Remedial Measures (Record Document 183) filed by Plaintiffs Chesapeake Louisiana, L.P.,
Chesapeake Operating, Inc. (“COI”), Larchmont Resources, L.L.C., Ivory Working Interest,
L.P., Comstock Oil & Gas–Louisiana, L.L.C., Petrohawk Properties, L.P., PXP Louisiana
L.L.C., Certain Underwriters at Lloyd’s, London, Subscribing to Certificates of Insurance Nos.
205041, 205043, JLWCTF3359, JLWCTF3360, and BD-CJP-388, Navigators Insurance
Company, Houston Casualty Company, and Gotham Insurance Company (“Plaintiffs”).1 All

1

CPTDC and JMP adopted WDI’s motion. See Record Document 165. Likewise,
WDI adopted the motion filed by CPTDC and JMP. See Record Document 162.

of the motions are opposed. For the reasons which follow, this Court hereby EXCLUDES all
evidence relating to the Barrier Philosophy and Immediate Action Plan (“Barrier
Memorandum”) and the Safety Stand Down meeting.
The Sumner 25 Well sustained a blowout on November 18, 2009. On November 25,
2009, COI reduced its barrier philosophy to a written policy, i.e., the Barrier Memorandum.
The overview of the memorandum reads:
The purpose of this memorandum is to establish clear requirements with
respect to barrier philosophy and to construct a list of wells requiring immediate
action. The goal of this document is to establish appropriate operational
guidelines to further limit the chance of well control incidents. The Haynesville
East barrier guidelines will require two barriers where a SICP greater than
6,000 psi is anticipated.
Record Document 161, Exhibit A. The Barrier Memorandum explains COI’s philosophy on
the use of barriers in wells, lists the types of acceptable barriers, explains the suggested
operational procedures, and lists those wells in the Haynesville Shale requiring immediate
action.
On December 11, 2009, COI held a Safety Stand Down meeting at its location in Sligo,
Louisiana, which included a PowerPoint presentation. The meeting was held as a direct result
of the recent injuries and fatalities at well sites, including the Sumner 25 well. The presentation
included operational changes and steps that should be taken to increase worker safety during
future well procedures. See Record Document 186 (SEALED).
All parties agree that the Barrier Memorandum and other operational changes made
by Plaintiffs after the Sumner 25 well control event are subsequent remedial measures under
Federal Rule of Evidence 407, which provides:

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When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to
prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or--if disputed--proving ownership, control, or the feasibility of
precautionary measures.
F.R.E. 407. Notwithstanding, Defendants argue that the Barrier Memorandum and other
operational changes are admissible to show control and/or causation.
Control
Rule 407 states that the court may admit evidence of subsequent remedial measures
for another purpose, such as – if disputed – control. Plaintiffs have definitely stated in their
briefs that control is no longer an issue: “COI, as the operator of the Sumner 25, maintains
ultimate control and authority over well operations.” Record Document 175 at 4. Thus, the
defense motions in limine seeking admission of subsequent remedial measures as evidence
of control are DENIED, as control is not in dispute.2
Causation
It is well settled that Rule 407 does not preclude the admission of subsequent remedial
measures on grounds other than to prove culpability. See Brazos River Auth. v. GE Ionics,

2

If control becomes a disputed issue at trial, then Defendants are free to reurge their
motions in limine.
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Inc., 469 F.3d 416, 429 (5th Cir. 2006). The Fifth Circuit “has long recognized that subsequent
remedial measures can be introduced on the issue of causation if that is in controversy.” Id.
Yet, the Fifth Circuit has also cautioned against the admissibility of subsequent remedial
measures when offered as rebuttal to claims of non-negligence, calling such arguments
“semantic manipulation[s]” that must be rejected. Hardy v. Chemetron Corp., 870 F.2d 1007,
1011 (5th Cir. 1989) More specifically, the Fifth Circuit reasoned:
Thus [Plaintiff] first maintains that she should have been allowed to impeach
[Defendant’s] “trial position” that negligent wiring had not caused her injury,
which, minus a double negative, amounts to saying that she should have been
allowed to adduce evidence of the rewiring to prove [Defendant’s] negligence.
This is precisely what Rule 407 was designed to prevent. As the Seventh
Circuit has explained: This exception must be applied with care, since “any
evidence of subsequent remedial measures might be thought to contradict and
so in a sense impeach [a party’s] testimony that he was using due care at the
time of the accident . . . . [I]f this counted as “impeachment” the exception would
swallow the rule. This circuit has recognized that risk and held that the trial
judge should guard against the improper admission of evidence to prove prior
negligence under the guise of impeachment.
Id. at 1010-1011.
Defendants rely upon Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392 (5th Cir. 1972)
and Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 423 (5th Cir. 2006) to support their
contention that the Barrier Memorandum and other operational changes are admissible to
rebut Plaintiffs’ theory of causation, i.e., defective tubing spool and lock screws. However, this
Court finds that both cases are factually distinguishable and/or have limited precedential
value. For instance, Bailey preceded both the Federal Rules of Evidence and the 1997
Amendments to Rule 407. See Rutledge v. Harley-Davidson Motor Co., 364 Fed.Appx. 103,
108 n. 4. (5th Cir. 2010).

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This Court believes that this matter falls within the category of cases discussed by the
Hardy court, wherein to allow the Barrier Memorandum and other operational changes to be
admitted would allow the exceptions to Rule 407 to swallow the express purpose of the rule.
Defendants seek to introduce the challenged evidence for the same purpose discussed in
Hardy – to rebut/impeach Plaintiffs’ theory regarding the cause of the well event. This
“semantic manipulation” of Rule 407 must be rejected.
Rule 4033
Additionally, this Court concurs with Plaintiffs’ position that the subsequent remedial
measures and the related documents at issue do not offer any information not already
available through the presentation of other evidence. Plaintiffs do not contend that Defendants
should be precluded from introducing evidence concerning a double barrier theory as a
defense. Rather, Plaintiffs argue that Defendants should not be permitted to use subsequent
remedial measures to bolster their theory. This Court agrees, finding that Defendants will
have ample opportunity to present evidence regarding additional pressure barriers,
specifically COI’s use of multiple barriers before the Sumner 25 well event. The Court
believes that the probative value of the subsequent remedial measures is substantially
outweighed by the danger of unfair prejudice and the presentation of cumulative evidence.
Accordingly,
IT IS ORDERED that Defendants’ Motions in Limine to Allow Evidence of Subsequent

3

Pursuant to Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
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Remedial Measures and Operational Changes (Record Documents 161 & 162) be and are
hereby DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude Evidence
Regarding the Barrier Philosophy and Related Subsequent Remedial Measures (Record
Document 183) be and is hereby GRANTED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 23rd day of January, 2015.

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